Update on the Massachusetts Noncompete Hearings
Yesterday, October 7, the Massachusetts legislature's Joint Committee on Labor and Workforce Development took testimony on the two pending bills to reform Massachusetts noncompete law: one to ban noncompetes (House Bill 1794) and the other (House Bill 1799) to codify, clarify, and improve the existing complicated and unpredictable common law in this area.
The testimony began with the two state representatives, Lori Ehrlich and Will Brownsberger, who had each sponsored one of the two bills (Rep Ehrlich sponsored H.1799 and Rep. Brownsberger sponsored H.1794). They explained that while, technically, the original two bills were up for consideration, they had been working together on a new "compromise" bill, which they are now sponsoring together. The representatives then explained the need for and goals of the new bill and laid the groundwork for the ensuing testimony.
I spoke next. After providing background of my qualifications for the role I played in connection with the bill (i.e., I was the lead drafter and advisor), I explained the current law and its problems; summarized key provisions of the new bill and how the bill addresses many of the problems with the current law; and explained how the bill sought to balance the interests of the employers against the needs of the employees. In an effort to explain why the bill addresses certain issues and not others, I reminded the committee that the bill takes on almost 200 years of Massachusetts noncompete jurisprudence - which is no easy task. To do more would have added substantially to an already lengthy bill, which as written codifies, clarifies, and modernizes current law; addresses the most pressing open issues in the current law; and provides much needed predictability for employers and employees alike.
Rob Mantell, who represents only employees (not employers), spoke next, and focused on the original bill to prohibit noncompetes (H.1794), although he also expressed support for the compromise bill. Most of the rest of the testimony focused primarily on the witness's position for or against the use of noncompetes. In addition, many of the "usual suspects" were there, including Professor Matt Marx, who provided information about how noncompetes are used in practice, and Bijan Sabet, who spoke eloquently from the perspective of venture capitalists opposed to the use of noncompetes.
From a personal perspective, as I listened to the testimony, what came through was that reform was well overdue and that the balance achieved by the bill was correct.